JUDGMENT Deoki Nandan, J. - This is a defendants' second appeal in a suit for ejectment and arrears of rent amounting to Rs. 78/- and damages in the sum of Rs. 200/- in respect of a house situated at Gorakhpur. The suit was instituted on 21st November, 1967, and the U. P. (Temporary) Control of Rent and Eviction Act, 1947, (hereinafter referred to as Act III of 1947) then in force, was applicable to the accommodation. The grounds on which the defendants ejectment was claimed were: (1) substantial damage to the accommodation for which damages in the sum of Rs. 200/- were claimed; and (2) subletting of the accommodation by the first defendant, who is the widow of the original tenant Ram Murti Singh, to the second defendant. The first ground does not survive for consideration in this second appeal; nor does the claim for damages, as the trial court found against the plaintiff-respondent on the point and it was not agitated any further. 2. The plaintiff-respondent came to Court with the allegations that the first defendants husband Ram Murti Singh was the tenant of the house on payment of Rs. 26/- p. m. as rent; that he died on 13th April, 1966; that the first defendant claimed to be the tenant of the house after his death on the instigation of the second defendant which led to litigation between the parties under Section 3 of the Act III of 1947; that the first defendant does not live in the house but lives at Jaunpur with her children; that out of enmity caused by the said litigation, the first defendant sublet the house to the second defendant and to another person who was a teacher in the Government Jubilee High School, Gorakhpur; that the defendant had damaged the accommodation, causing loss of Rs. 200/-; that the tenancy of the 1st defendant was thereupon terminated by a notice dated 9th October, 1967 served by registered post acknowledgment due on the defendants; that after service of the notice the other sub-tenant, namely, the teacher, was ousted, but the 2nd defendant continues as a sub-tenant of the 1st defendant; that again out of enmity the first defendant was depositing the rent in the Munsifs Court under Section 7-C of Act m of 1947, but the rent for the period commencing from 1st August, 1967 was due, amounting to Rs. 78/- up to 31st October, 1967. A fresh plea to the effect that the 2nd defendant, who was in occupation of the accommodation, had started using it for business, was raised by amendment of the plaint but that too does not survive for consideration in this second appeal. 3. In defence, only the 1st defendant filed a written statement. She pleaded that after the death of her husband, she along with their 3 sons, are the tenants of the house, as his successors; that the suit was bad for non-joinder of necessary parties, namely the sons; that she along with the sons has been living in the house as a tenant after her husbands death; that the allegation that she lives at Jaunpur was wrong; that she never sub-let the house to anyone; that the 2nd defendant was her husbands younger brother and had been living in the house since her husbands lifetime, that her husbands ancestral house was at Jaunpur, which she visited off and on, but permanently lived in the house in suit as a tenant, and regularly paid the rent and deposited it under Section 7-C of Act III of 1947, and the rent up to November, 1967. was duly paid up. There were other pleas which do not survive for consideration except the one contained in paragraph 23 of the written statement that the notice given by the plaintiff was absolutely wrong and against law, and the other contained in paragraph 25 that the suit was barred by Section 3 of Act III of 1947. 4. The trial court dismissed the suit for ejectment and damages, although a decree for recovery of Rs. 78/- as arrears of rent was passed, on the findings that the suit was bad for non-joinder of the sons, and the notice under Section 106 of the Transfer of Property Act was also bad on that account. Sub-letting was held proved, and accordingly the suit was held to be not barred by Section 3 of Act III of 1947. 5. On appeal by the plaintiff, the lower appellate court formulated the following questions for its determination: "(1) Whether the defendant No. 1 had Sublet the whole or any portion of the accommodation to defendant No. 2 as alleged? "(2) Who inherited the tenancy on the death of Ram Murti Singh his wife only or his sons also? 5. On appeal by the plaintiff, the lower appellate court formulated the following questions for its determination: "(1) Whether the defendant No. 1 had Sublet the whole or any portion of the accommodation to defendant No. 2 as alleged? "(2) Who inherited the tenancy on the death of Ram Murti Singh his wife only or his sons also? "(3) Whether the notice u/s- 106 T. P. Act for ejectment of the defendant was invalid as alleged by the respondent?" 6. On the first question, so formulated by it, the lower appellate court found that the first defendant had sub-let the accommodation in question to the second defendant; on the second question, that the 1st defendant alone inherited the tenancy on the death of her husband Ram Murti Singh and she alone was the tenant of the house; and on the third question that the notice under Section 106 of the Transfer of Property Act was not invalid. 7. Mr. S. P. Srivastava, learned counsel for the defendant appellants, has attacked the findings of the lower appellate court on all the three points. His first contention was that in deciding the second question relating to the heritability of tenancy on the death of Ram Murti Singh, the lower appellate court was manifestly wrong in relying on the definition of a tenant contained in the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Act XIII of 1972) inasmuch as the present case was governed by the provisions of Act in of 1947, in spite of its repeal by Act XIII of 1972 with effect from 15th July, 1972 during the pendency of the suit in the trial court. He referred to the savings clause (s) of sub-section (2) of Section 43 of Act XIII of 1972. At the time when the lower appellate court considered the matter, the said provisions of Section 3 (a) and the relevant repeal and savings provisions of Section 43 (1) and (2) read as under:. "3. Definition............... He referred to the savings clause (s) of sub-section (2) of Section 43 of Act XIII of 1972. At the time when the lower appellate court considered the matter, the said provisions of Section 3 (a) and the relevant repeal and savings provisions of Section 43 (1) and (2) read as under:. "3. Definition............... In this Act, unless the context otherwise requires - (a) "tenant", in relation to a building, means a person by whom its rent is payable, and on the tenants death ; (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of non-residential building, his heirs;" "43. Repeal and savings - (1) The United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (U. P. Act No. in of 1947) is hereby repealed. (2) Notwithstanding such repeal - ....................................... (s) any suit for the eviction of a tenant instituted on any ground mentioned in subsection (1) of Section 3 of the old Act, or any proceeding for the execution of a decree passed on the basis of any agreement, compromise or satisfaction, pending immediately before the commencement of this Act, may he continued and concluded as if this Act had not been passed;" 8. As the language of the savings clause (s) had, according to the learned counsel, led to certain unintended results noticed by a Division Bench of this Court in Allahabad Theatres (Pvt.) Ltd. v. Kusum Kumari ( AIR 1974 All 73 ): (1974 All LJ 196), the Legislature stepped in and clarified its intention by a retrospective amendment thereof, by Section 28 (vi) of U. P. Act XXVIII of 1976 which is in the following terms: "23. Amendment of Section 43. In Section 48 of the principal Act, in sub-section (2) - (vi) in clause (s), for the words "as if this Act had not been passed", the words "in accordance with the old Act which shall for that purpose be deemed to continue to be in force" shall he substituted and be deemed always to have been substituted." 9. In Section 48 of the principal Act, in sub-section (2) - (vi) in clause (s), for the words "as if this Act had not been passed", the words "in accordance with the old Act which shall for that purpose be deemed to continue to be in force" shall he substituted and be deemed always to have been substituted." 9. It is undisputed that in the present case the accommodation was residential and accordingly if the definition of a tenant contained in Section 3 (a) of Act XIII of 1972 were applicable, such only of his heirs as normally resided with him in the building at the time of his death could be treated to be a tenant on Ram Murti Singhs death. The lower appellate court proceeded to apply this definition without going into the question whether Act XIII of 1972 could at all apply to the present case, and having come to the finding that only the 1st defendant could be said to have normally resided in the house in suit with Ram Murti Singh at the time of his death, it found that she alone could be said to have become the tenant on his death, and it reinforced that inference by relying on the representation made by her in the application under Section 7-C of Act ITT of 1947, wherein she had claimed herself alone to be the tenant of the house in suit. 10. The learned counsel for the defendant-appellants contended that notwithstanding the repeal of Act III of 1947. by Act XITI of 1972, the suit which was pending immediately before the commencement of Act XIII of 1972 had to be continued and concluded in accordance with the old Act (III of 1947) which must, for the purpose, be deemed to continue to he in force. 11. Dr. Gyan Prakash, learned counsel for the plaintiff-respondent, did not contend that Act XIII of 1972 could be applied .in the present case. He conceded that Act III of 1947 may be taken to have not been repealed by Act XIII of 1972 for purposes of the present case, in view of the saving clause 43 (2) (s). 11. Dr. Gyan Prakash, learned counsel for the plaintiff-respondent, did not contend that Act XIII of 1972 could be applied .in the present case. He conceded that Act III of 1947 may be taken to have not been repealed by Act XIII of 1972 for purposes of the present case, in view of the saving clause 43 (2) (s). Nevertheless, Act III of 1947 was a temporary Act and notwithstanding its repeal by Section 43 (1) of Act XIIII of 1972 with effect from 15th July, 1972, the date on which the repealing Act came into force, even if Act III of 1947 is deemed to have continued to be in force for the purposes of the present case under saving clause(s) as amended retrospectively by Section 23 (vi) of U. P. Act XXVIII of 1976, it could be deemed to continue to be in force as it was, without any change or amendment of its provisions; and in accordance with the language of Section 1 (4) of that Act, it ceased to have effect on the expiry of September 80, 1972. He accordingly suggested that the protection afforded by Act III of 1947 may in that case be no longer available to the defendant appellants, but left the matter there, saying that the question was a complicated one and may require consideration only if it were found that the 1st defendant alone could not be said to be tenant of the accommodation in accordance with the definition of a tenant contained in clause (g) of Section 2 of Act III of 1947. 12. Dr. Gyan Prakash contended that on the pleadings of the parties and the facts and the circumstances of the case it was not open to the 1st defendant-appellant to contend that she alone was not the tenant of the accommodation or that the notice terminating the tenancy was bad on that account Elucidating the contention he emphasised that the 1st defendant had represented and claimed herself alone to be the tenant of the accommodation, in the application under Section 7-C of Act III of 1947, Vide Ex. 6 and, had not challenged the validity of the notice on any such ground either in her reply dated 9-11-1967, Vide-Ex. 6 and, had not challenged the validity of the notice on any such ground either in her reply dated 9-11-1967, Vide-Ex. 4, to the quit notice, or even in her written statement, vide-paragraph 23, the only plea taken therein being that the suit was bad for non-joinder of her three sons who were necessary parties. He further pointed out that the plaint clearly showed that the plaintiff acted on the representation made by the 1st defendant in her application under Section 7-C, and expressly pleaded that the 1st defendant was claiming herself to be the tenant although she was not living in the house in suit and had sub-let the accommodation to the 2nd defendant along with another person. 13. It may he that on the facts of the case the plaintiff could have raised the plea more specifically, by filing a replication to the effect that the 1st defendant was estopped from denying that she alone became the tenant of the accommodation after her husbands death, hut no replication raising any such plea appears to have been filed in reply to the plea of non-joinder of necessary parties, taken in paragraph 23 of the 1st defendants written statement, on the ground that she along with her three sons was living in the house in Suit as tenants after the death of her husband. Estoppel is a rule of evidence prescribed by Section 115 of the Evidence Act. Nevertheless it is necessary to establish the facts on which the plea of estoppel may be founded, and it is well settled that no amount of evidence can be looked into upon a plea which was never put forward. One has, therefore, to scan the plaint in this case to see whether the necessary facts for raising the plea of estoppel were pleaded by the plaintiff. The learned counsel for the plaintiff-respondent has sought to raise the plea of estoppel on the basis of the claim and representation alleged to have been made by the defendant-appellant No. 1 in her application under Section 7-C of Act in of 1947, and on the fact that she did not in her reply to the quit notice say that she alone was not the tenant. One striking feature of the plaint in this case is the plea contained in paragraph 4 to the effect that after the death of Ram Murti Singh, his widow, defendant No. 1, claimed herself to be the tenant at the instigation of the second defendant which led to litigation between the parties under Section 3 of Act III of 1947. The fact of the making of the application under Section 7-C of Act III of 1947 by the 1st defendant is pleaded in paragraph 9 of the plaint with the embellishment that the rent was deposited out of enmity. The validity of the deposit under Section 7-C was not challenged by the plaintiff, which showed that although she had earlier refused to accept the rent hut on deposit having been made under Section 7-C by the first defendant she acquiesced in treating the first defendant as her tenant. The fact of the service of the quit notice is of course mentioned in the plaint hut the reply given thereto is not mentioned. It cannot he said that the necessary facts for raising the plea of estoppel were not pleaded in the plaint. The plaintiff-respondent did not assert as a fact, that the first defendant became the tenant on the death of Ram Murti Singh. She had asserted that the first defendant claimed herself to have become the tenant after the death of her husband Ram Murti Singh which led to litigation between the parties under Section 3 of the Act III of 1947 and thereafter the plaintiff having refused to accept the rent, the 1st defendant deposited the same under Section 7-C of Act III of 1947; and the validity of the deposit not having been challenged it is implicit that the plaintiff acquiesced into treating the 1st defendant alone as the tenant. That this was so is further apparent from the fact that the plaintiff served the quit notice only on the 1st defendant. If the plaintiff had known that the sons of the 1st defendant had also become tenants along with her, by inheritance on Ram Murti Singhs death, she would have surely served a quit notice on all of them. That this was so is further apparent from the fact that the plaintiff served the quit notice only on the 1st defendant. If the plaintiff had known that the sons of the 1st defendant had also become tenants along with her, by inheritance on Ram Murti Singhs death, she would have surely served a quit notice on all of them. Further, the plaintiff must have been led into believing that the 1st defendant alone became the tenant on the death of Ram Murti Singh, by the representation made by her against column No. 7 of the application under Section 7-C of Act III of 1947 which was allowed; and the validity of the deposit not having been challenged by the plaintiff she was bound to treat the 1st defendant as the tenant and to accept rent from her. It cannot, therefore, be said that the necessary facts for raising the plea of estoppel against the 1st defendant that she alone was not the- tenant, were not pleaded, or have not been established by the material on the record. However, the learned counsel for the defendant appellant has contended that the parties were not at issue on this point, and further that the two courts below have not gone into the question. It is true that the plea of estoppel in so many words was not raised. Nevertheless, it does appear from the discussion in the trial courts judgment under issues Nos. 6 and 8 that the representation and conduct of the 1st defendant in making the deposits under Section 7-C of U. P. Act III of 1947 or the allegation that she alone was the tenant was put forward as a fact for contending that the 1st defendant alone was the tenant. Indeed the learned Munsif has on this point observed that "Merely by the fact that the rent was deposited by Smt. Bansharji and not by her sons also it cannot he drawn that her sons and she was not living with Ram Murti Singh and that they did not inherit the tenancy after his death." This inference is erroneous in law. As already observed, the rule of estoppel prescribed by Section 115 of the Evidence Act, is a rule of evidence. As already observed, the rule of estoppel prescribed by Section 115 of the Evidence Act, is a rule of evidence. The court must apply the rule to the primary facts of the case and if the rule is so applied to the facts of the present case it must be held that the 1st defendant could not have been permitted to deny the truth of the representation made by her in the proceedings under Section 7-C of Act No. III of 1947 that she alone was the tenant of the accommodation after the death of her husband Ram Murti Singh. Even otherwise, the inferences drawn by the learned Munsif on this point from the proved primary facts of the case are erroneous in law. It is undisputed that Act III of 1947 governs the tenancy in question. A tenant is defined by that Act "as the person by whom rent is, or but for a contract express or implied would be payable for any accommodation." Section 7-C (1) of that Act lays down that when a landlord refuses to accept any rent lawfully paid to him by a tenant in respect of an accommodation the tenant in the prescribed manner may deposit such rent and continue to deposit any subsequent rent which becomes due in respect of such accommodation. The deposit in such a case can only be made by a tenant and the right to make the deposit does not arise unless the landlord wrongfully refuses to accept the rent lawfully paid to him. The form for making such deposit is prescribed by the Rules framed under the Act. Ex. 6 which is a certified copy of the application made by the 1st defendant shows that she claimed herself alone to be the tenant. The form for making such deposit is prescribed by the Rules framed under the Act. Ex. 6 which is a certified copy of the application made by the 1st defendant shows that she claimed herself alone to be the tenant. In Fateh Chand v. B. S. Goel (1967 All LJ 979) it has been ruled by a Division Bench of this Court that "whether the person who made the deposit was a tenant and that the landlord had refused to accept rent lawfully paid to him, were jurisdictional facts which must exist to entitle a tenant to take recourse to clause (1) of Section 7-C of the Act No. III of 1947 and "Before issuing notice to the landlord under clause (4) of Section 7-C of the Act, the learned Munsif will no doubt satisfy himself whether these two facts were prima facie made out by the application made by the tenant, but when notice to the landlord is issued under clause (4) and the landlord appears before the Munsif and files an objection questioning the existence of any of the two jurisdictional facts, it will not only be within the powers of the learned Munsif but indeed the duty of the learned Munsif to go again into the question as to whether or not the jurisdictional facts necessary to enable him to act under clause (1) of Sec. 7-C of the Act exist." It is also not disputable that the proceedings under Section 7-C are summary in nature, and apart from the right of an aggrieved party to question the correctness of an order passed by a Munsif under Section 7-C, by way of revision if the necessary conditions therefor exist, it is open to the aggrieved party to impugn the validity of the order in a suit. In the present case, however, the plaintiff-respondent did not challenge the validity of the order under Section 7-C of the Act. The consequence of that order having become final was that the parties to those proceedings, imuch less the applicant at whose instance the order was passed, could not be permitted to say that the applicant was not the tenant of the accommodation in question. The consequence of that order having become final was that the parties to those proceedings, imuch less the applicant at whose instance the order was passed, could not be permitted to say that the applicant was not the tenant of the accommodation in question. This aspect of the matter was completely ignored by the learned Munsif in brushing aside the aforesaid facts relating to the proceeding under Section 7-C of the Act and holding that the 1st defendant alone was not the tenant of the accommodation. 14. In view of the above finding it is not possible to entertain the contention raised by the learned counsel for the defendant-appellants, in the light of the judgment of a Division Bench of this Court in Second Appeal No. 1661 of 1970 Budh Sen v. Shree Chandra Agarwal decided on August 9, 1977, (reported in AIR 1978 All 88 ) that the tenancy of Ram Murti Singh was inherited on his death by his widow and his sons as co-tenants and that, therefore, the 1st defendant-appellant alone was not the tenant of the accommodation in suit. The quit notice addressed to her alone must, therefore, be held to be valid. 15. On the other point about sub-letting, both the courts below have concurrently found it as a fact that the accommodation in suit had been sub-let to the second defendant by the 1st defendant. The finding does not suffer from any error of law. The trial court observed that although the written statement was filed on behalf of defendant No. 1 alone, she did not appear in the witness box, and the written statement was .in fact got prepared by the 2nd defendant and he alone appeared in the witness-box and had all along been doing pairavi on her behalf; and on an appraisal of the evidence it found that although the 2nd defendant may have been living with Ram Murti Singh while he was a student, he left the house and lived in Main Bazar after he got into Railway Service; and that he was not living in the house at the time of Ram Murti Singhs death but came to occupy it only after his death. On these facts the trial court held that the house was sub-let to the 2nd defendant by the 1st defendant. On these facts the trial court held that the house was sub-let to the 2nd defendant by the 1st defendant. The lower appellate court also did not believe the statement of the 2nd defendant on the aforesaid point, and confirmed the trial Courts finding that the house in suit was sub-let by the 1st defendant to the 2nd defendant. 16. The learned counsel for the defendant-appellants, however, contended that there is no evidence to prove any contract of subletting or payment of rent, though it is admitted that the 2nd defendant was living in the accommodation in suit. The plaintiffs case was that the 1st defendant was actually living at Jaunpur and not in the accommodation in suit. The 2nd defendant who alone appeared as a witness for the defendants, has been disbelieved by the two courts below. Under these circumstances, following the rule laid down in Ram Bharose v. Ajeet Kumar (ATR 1952 All 806): (1952 All LJ 280), it cannot he said that the finding of the two courts below that the 2nd defendant was a sub-tenant suffers from any error of law. The cases cited by the learned counsel for the defendant-appellants on this point, namely, Ram Prakash v. Shambhu Dayai Agarwal ( AIR 1960 All 395 , Radha Kishan v. Data Ram (1961 All LJ 827), and Seth Lakshmi Chand v. Nathmal Dulichand (1965 All LJ 1000) are beside the point and have no application to the facts of the case. 17. In the result, the appeal fails and is dismissed with costs.